EXCLUSIVE: Climate bill could trigger lawsuit landslide

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By Tom LoBianco

It would allow citizens to seek up to $75,000 in damages from the government each year, but would cap the total amount paid out each year at $1.5 million, committee staff said. It is unclear whether the provision would actually cap damages at $75,000 per person, because the U.S. law referenced does not establish payouts by the government.

The $1.5 million cap reflects a compromise reached with House Republicans in a 2007 version of the measure introduced by Mr. Waxman, committee staff said. Mr. Waxman and Mr. Markey wrote the measure into a broader climate plan introduced last week, although it was left out of a bill summary that committee staff provided at the time.

Republican committee staff said the measure has the potential to muddle the judicial system.

"Perhaps a more accurate title of the bill would be 'The Lawyer Full-Employment and As-Seen-on-TV Global Warming Act of 2009,' " said Larry Neal, deputy Republican staff director for the House committee.

Democratic staffers said the measure provides guidance to the courts on how to apply existing Clean Air Act provisions. Private citizens can sue the government based on harm caused by pollutants currently regulated under the Clean Air Act - including nitrogen oxide and sulfur oxide - but they lack standing to sue for damages resulting from climate change.

Regulating carbon dioxide has been a hard slog for environmentalists, and some energy analysts say that the Waxman-Markey bill and parallel efforts by the Obama administration constitute a multifaceted attempt to achieve the goal by regulation if legislative attempts fail.

The "citizen suit" would allow people to force government action on climate change, seemingly a redundancy in a bill that would achieve that goal if passed. But environmentalists have been cautious in their tack, arguing that many environmental protections on the books were not vigorously enforced under the Bush administration.

Environmental lawyers played down the significance of the provision.

The measure would not guarantee payouts from the government or successful lawsuits, Mr. Doniger said, but would set the bar for people seeking to force the government to act on climate change.

He likened the measure to tort laws regarding cigarette smoke or cancer-causing chemicals, in which the harmful effects are not seen for decades.

"If this pollution isn't curbed, it isn't just today or tomorrow you have problems, it's also 20 to 30 years from now," Mr. Doniger said.

Expansion of the Clean Air Act to allow "citizen suits" on climate change has been a goal among environmental groups and moderate to liberal Democrats for many years - although the measure has never succeeded.

But amending the Clean Air Act is "potentially a big gamble" because it opens other sections of the act to modification during the bill-drafting process, said a Democratic energy lobbyist, who spoke on the condition of anonymity because of ties to committee members.